By-Laws of the Association of Ship Brokers and Agents (U.S.A.), Inc.
ARTICLE I: Membership
Section 1: Regular membership of this Association shall be restricted to business establishments that
(a) are actively and regularly engaged in business as ship brokers or agents,
(b) meet the qualifications for membership established in the By-Laws of this Association, and
(c) are duly elected to membership in accordance with the By-Laws.
Only those business concerns who are engaged in business as ship brokers or agents shall be eligible for membership in this Association.
Section 2: Any business establishment meeting the requirements of Section 1, located in the United States or Canada, shall be designated a Company Member and entitled to full privileges, including voting.
Section 3: An individual may be elected an Honorary Member of the Association at a meeting of the Board of Governors by a two-thirds vote of the entire Board and thereafter ratified by a two-thirds vote of the members present at any subsequent meeting of the Association. Honorary members shall have the full privileges of the Association, except the right to vote, and shall be exempt from the payment of any dues or assessments.
Section 4: (a) Applicants for membership in the Association shall file a written application with the Secretary. Such application must include the following:
(i) an opening paragraph wherein the applicant applies for company membership, states that he has read the By-Laws and Code of Ethics of the Association, and specifically agrees, if admitted to membership, to abide by the By-Laws and Code of Ethics of this Association; (ii) specific statements as to the dates between which and places at which the applicant has engaged in business in the United States or Canada as a ship broker or agent, such statements clearly evidencing at least one year’s activity as a ship broker or agent immediately preceding the date of the application unless excepted by the Board due to special considerations; (iii) detailed statement of the citizenship, ownership, affiliates, types of business and experience of the applicant. (b) Such letter of application must be accompanied by written sponsorship by two members of this Association wherein the sponsors certify that they (i) have read the application in full, (ii) consider the applicant a desirable member, and (iii) believe the applicant if elected, will abide by and foster the ideals and standards of the Association.
Section 5: The Board of Governors acting as a membership committee shall consider each application for membership submitted in accordance with the By-Laws. By secret written ballot the Board of Governors shall determine whether to recommend admission of the applicant to the membership or to instruct the Secretary to advise the applicant of the Board’s failure to so recommend. A two-thirds majority of the Board shall be required before the application of a proposed member is announced to the membership. The Secretary shall forward to each member a notice advising that the Board of Governors recommends the admission to membership of the applicant. Together with this notice, the Secretary will forward to each member a blank for registering approval or disapproval and containing space for any comments, favorable or unfavorable, which the member wishes to make. A two-thirds majority of the membership ballots will be required before the application of a proposed member has been approved. Once this approval has been confirmed by the membership as above, the applicant will be considered elected to membership.
Section 6: Representation at all meetings of the Association shall be by duly authorized representatives of the member establishments. No member establishment shall have more than one vote on any one question. The action of any individual in participating and voting in this Association shall commit only his business establishment. The vote of each member in good standing may be cast in person or by proxy, by letter or by telegram, in any matter before the Association.
Section 7: The Divisional Groups of the Association, for the purposes of Article IV, Section 1, and other places mentioned in the By-Laws, shall be the following:
Dry cargo brokers;
Sale and purchase brokers.
Section 8: (a) Individuals who qualify as shipbrokers and ship agents may become “Associate Members” of the Association. As such, they shall pay dues as set annually by the Board of Governors.
(b) Such Associate Members have no vote but the body of Associate Members may be convened as an Advisory Council at the pleasure of the President.
(c) The Board of Governors shall, from time to time, set up qualifications and standards for the admission of Associate and Affiliate Members and their annual retention of such membership, and may require examination.
(d) The President, with the advice of the Board of Governors, shall annually appoint a Membership Committee which shall review the qualifications of company, associate, and affiliate applicants and make its recommendations to the Board of Governors.
Section 9: There shall be a class of members designated as “Affiliate Members” which shall encompass persons and business concerns not actually or regularly engaged in the business of shipbrokers or ship agents, but who are engaged in business related to transportation or international trade services.
Such Affiliated Members shall:
(a) Pay dues as determined by the Board of Governors;
(b) Attend general membership meetings at the discretion of the President and the Board of Governors but may not vote or hold office;
(c) Be required to use the word “Affiliate” to describe their membership in the Association in all their printed material, advertisements and/or publications.
ARTICLE II: Termination of Membership
If the Board of Governors has reason to believe that a member is in violation of the By-Laws or Rules of the Association, the President shall constitute a committee of three members from the Board of Governors to determine whether such violation is sufficient to merit a determination that a member company is no longer eligible for membership. Said committee shall hear and determine in their sole discretion whether grounds exist for declaring a member company no longer eligible for membership. Any determination by the committee shall be final and binding.
By agreeing in Article I, Section 4(a), of the By-Laws, to abide by the By-Laws and Code of Ethics of the Association, the said member company, if found to be no longer eligible for membership, agrees that the determination of the committee shall be binding and that said member company has no recourse of whatsoever nature to appeal or question said determination.
ARTICLE III: Meetings
Section 1: The annual meeting of the Association shall be held within ninety days after the end of the Association’s fiscal year in each year, or as soon thereafter as practicable. Notice of the annual meeting shall be sent to every member at least three weeks prior to the date thereof.
Section 2: The Board of Governors shall convene at least quarterly, and also at any time at the call of the President.
Section 3: Upon the written request of any ten members of the Association, the President or Secretary shall call a special meeting to consider the specific subject or subjects. Notice of each special meeting shall be given in writing by the President or Secretary five days in advance thereof with a statement of the time and place of such special meeting and the subjects to be considered.
Section 4: A majority of the members in good standing, either in person or by proxy, at the annual or any regular or special meeting of the Association, shall constitute a quorum for all purposes.
ARTICLE IV Board of Governors
Section 1: The governing body of ASSOCIATION OF SHIP BROKERS AND AGENTS (U.S.A.), INC. shall be a Board of Governors consisting of a President, First Vice-President, Second Vice-President, Secretary, Treasurer and not less than seven Directors. As far as practicable, each Divisional Group, as enumerated and described in Article 1, Section 7, of the By-Laws, shall be represented by one Director.
Section 2: All Officers, except the Secretary, shall be elected annually by the members of the Association at its annual meeting called for the purpose.
Section 3: The Directors, who shall be from member firms, shall be elected by the Association at its annual meeting as follows:
At each annual meeting, Directors shall be elected in accordance with the number of present Directors whose terms are expiring, each to be elected for a term of two years. The most recent ex-President shall be ex-officio a member of the Board, having equal rights with other members, including the right to make motions and to vote.
Section 4: The Board of Governors may elect not more than two individuals as Honorary Directors for the current year by a two-thirds vote of the entire Board. Honorary Directors shall have the full privileges of the Association, but shall be exempt from the payment of any dues or assessments, and shall not have the right to vote.
Section 5: All Officers, except the Secretary, and Directors shall continue in office until their successors are elected and installed at the conclusion of the meeting at which elected.
Section 6: The Board of Governors of ASSOCIATION OF SHIP BROKERS AND AGENTS (U.S.A.), INC. shall be charged with the duty of doing whatever may be necessary for the furtherance of the purposes and the attainment of the objectives of the ASSOCIATION OF SHIP BROKERS AND AGENTS (U.S.A.), INC.
Section 7: The Board of Governors shall constitute the governing administrative body of ASSOCIATION OF SHIP BROKERS AND AGENTS (U.S.A.), INC. and its action shall be final.
Section 8: The Board of Governors with the approval of the membership, shall define rules of fair practice for the purpose of maintaining uniform and equitable usages, customs and practices.
Section 9: A majority of the members of the Board of Governors shall constitute a quorum for the transaction of all business, except in cases where a larger vote is required under the By-Laws.
Section 10: In case of inability to attend, a member of the Board of Governors may give his proxy to another member of the Board of Governors.
ARTICLE V Officers
Section 1: The Officers of ASSOCIATION OF SHIP BROKERS AND AGENTS (U.S.A.), INC. shall be a President, First Vice-President, Second Vice-President, Secretary and Treasurer. The authority and duty of each Officer shall be defined herein.
Section 2: Each Officer, except the Secretary, shall be a representative of a member in good standing of the Association.
Section 3: The nomination of Officers shall take place in the following manner: A Nominating Committee of five members, one to be appointed as Chairman, shall be named by the President and unanimously approved by the Board of Governors each year, at a meeting of the Board to be called in October. The Divisional Groups, as enumerated in the By-Laws, shall as far as practical be represented on this Nominating Committee.
Elected Officers and Directors shall not be eligible to serve on the Nominating Committee and vice-versa.
As promptly as possible after its appointment, and not later than December 1st each year, the Nominating Committee shall report in writing to the President, giving a list of its nominees, one for each office and director to be elected at the ensuing annual meeting. Notice of such nominees shall be conveyed by the Secretary to the members of the Association not less than three weeks prior to the annual meeting.
Notwithstanding the foregoing, members may make independent nomination or nominations for such Officers and Directors, by presenting, in writing, such nomination or nominations to the Secretary at least two weeks prior to the date of annual meeting. If at least ten members shall have endorsed such nomination or nominations notice of such shall be conveyed to the members of the Association one week prior to the date of the annual meeting.
All nominations duly made in accordance with the foregoing procedure are to be submitted to the members for balloting at the annual meeting.
Section 4: Each Officer, except the Secretary, shall be elected by a majority vote of all members, either in person or by proxy, at the annual meeting held for that purpose.
Section 5: All Officers, except the Secretary, shall serve without compensation. The Secretary shall be appointed by the Board of Governors who shall fix his compensation and that of such administrative personnel as in its discretion may become necessary.
Section 6: All elective Officers shall serve until their successors are elected and shall have qualified.
Section 7: The President shall preside at all meetings and shall perform such other duties as usually pertain to the office of President, including a report at the annual meeting of the Association: he shall be ex-officio a member of all committees except the Nominating Committee and with the advice of the Board of Governors shall appoint all special committees.
Section 8: The First Vice-President shall act in the President’s place at the meetings, perform the duties of the President’s office during his absence, and carry out such other duties as may be assigned to him from time to time by the President.
Section 9: The Second Vice-President shall act in the First Vice-President’s place during his absence and shall carry out such duties as may be assigned to him from time to time by the President.
Section 10: The Secretary shall be the Acting Administrative Officer of ASSOCIATION OF SHIP BROKERS AND AGENTS (U.S.A.), INC., under the supervision and direction of the President and the Board of Governors, in conducting the business of the Association and shall perform such duties as are specified or implied in the By-Laws, or as may be assigned to him by the Board of Governors. He shall attend all meetings of the Association and of the Board of Governors and shall be an ex-officio member of all committees.
Section 11: The President and/or Secretary, when serving as ex-officio members of any committee, shall have equal rights with other committee members, including the right to make motions and to vote.
Section 12: The Treasurer shall receive all funds paid to ASSOCIATION OF SHIP BROKERS AND AGENTS (U.S.A.), INC., and shall deposit same in a bank designated by the Association’s Treasurer with the concurrence of all officers, and shall disburse the same under the direction of the Board of Governors. His accounts and books shall be at all times open to the inspection of any member of the Association.
He shall make an annual report at the annual meeting of the Association and at such other times as the President or the Board of Governors may require.
Section 13: Vacancies. Whenever a vacancy shall occur among the Directors, the Board of Governors shall designate a member of the Association to fill such vacancy until the next annual election of the Association, at which time a Director shall be elected for the full balance of the unexpired term of the Director originally elected to such vacated directorship.
Whenever a vacancy shall occur among the Officers, the Board of Governors shall designate a member of the Association to serve for the balance of the term of the Officer originally elected to such vacated office.
Section 14: The ASSOCIATION OF SHIP BROKERS AND AGENTS (U.S.A.), INC. shall hold harmless any person elected or appointed to serve as an Officer, a member of the Board of Directors, a member of any committee, and any member of any other group established pursuant to these By-Laws, against any claim or demand that may be made against them and shall indemnify them against any and all losses, or damages arising out of any action or failure to act, to the fullest extent permitted by law, where such action or failure to act was in good faith. Such agreement of indemnity is in consideration of the fact that such persons devote their time and energies for the benefit of the Association and its members.
ARTICLE VI Ethics Committee-Code of Ethics
Section 1: The President shall appoint a Committee of five members to be known as the Ethics Committee. This Committee shall from time to time recommend to the Board of Governors and the members, amendments to the Code of Ethics of this Association. Such amendments shall become effective only after adoption by the membership.
Section 2: Complaints concerning the conduct of members shall be referred to the Ethics Committee, who shall investigate said complaints and, where in the discretion of the Committee it appears advisable, hold hearings. At least five days’ notice of such hearings shall be given the member against whom the complaint has been made.
Section 3: The Committee shall report to the Board of Governors of this Association its findings on each complaint together with the Committee’s recommendation for action by the membership.
Section 4: The Secretary of this Association shall be an ex-officio member of the Ethics Committee and shall keep records of the meetings, investigations, hearings, findings and recommendations of the Committee.
Section 5: The members of the Ethics Committee shall serve for a term of two years, three members being appointed in the odd-numbered years and two members being appointed in the even-numbered years, except that the President, when initially appointing the Committee, shall appoint three members for two years and two members for a one-year term.
Section 6: The Ethics Committee shall be available at any time to all members upon request to assist in resolving broker and agency problems relating to ethics. The Committee shall report to the Board of Governors of this Association its findings on each complaint together with the Committee’s recommendations.
ARTICLE VII Amendments To By-Laws
No amendment to the By-Laws of this Association shall be valid unless the proposed amendment has first been submitted to the Board of Governors, and approved by a two-thirds vote of said Board, and there after ratified by a two-thirds vote of the members present in person or by proxy at any meeting of the Association, subsequent to the adoption of such amendment by the Board of Governors.
The proposed amendment so adopted by the Board of Governors shall be placed in discussion at such meeting and approved or rejected as submitted or returned to the Board of Governors with instructions for further action.
Notwithstanding the foregoing, on presentation of a petition signed by at least fifteen members, the President shall call a meeting, at which the proposed amendment to the By-Laws shall be submitted to the membership for their action.
Written notice of such meeting at which the proposed amendment is to be submitted, shall be given at least fifteen days prior to the holding of such meeting, and the proposed amendment to be acted upon shall be stated in the call therefore.
This provision shall not be deemed to shorten the time which now is, or may hereafter be provided for the calling of annual meetings.
ARTICLE VIII Dues
For the purpose of paying dues Company membership shall be divided into two categories: 1. for companies with more than two brokers or agents, and 2. for companies with only one or two brokers or agents.
The Board of Governors shall determine dues for the forthcoming year at a meeting in the last quarter of the calendar year, and such dues shall be assessed on January 1st to Company, Associate, and Affiliate Members. Dues are payable not later than March 1st, and any members who have not paid by this date are to be so advised by the Secretary. If payment is not received within fourteen days after such notice from the Secretary, the member will be subject to suspension by the Board of Governors.
New members accepted during the Association year shall pay dues for the year of acceptance into membership on the following basis:
Accepted prior to July 1st 100%
Accepted on and after July 1st 50%
ARTICLE IX Order of Business
Section 1: The following order of business shall be observed at all meetings:
1. Roll Call.
2. Minutes of previous meeting.
3. Report of President.
4. Report of Secretary.
5. Report of Treasurer.
6. Reports of Committees.
7. Unfinished Business.
9. New Business.
Any questions as to the priority of business shall be decided by the Chair without debate.
Section 2: “Robert’s Rules of Order” shall serve as the guide in the conduct of this Association and its meetings.
ARTICLE X Resignation
Resignation from office or membership in this Association shall be effective thirty days after date of tender, but must be transmitted to the Secretary in writing, and no resignation shall be in order unless the member resigning is clear of all indebtedness to the Association.
ARTICLE XI Laws
This Association, having been incorporated under the Membership Corporation Laws of the State of New York, is governed as to (a) changes and amendments of Certificate of Incorporation (b) consolidation, (c) dissolution, and (d) any matters not included in these By-Laws or the Certificate of Incorporation, by the applicable laws of New York.
Original Constitution of the preceding unincorporated Association was adopted December 27, 1933. Revised version was adopted May 28, 1946. The Association was incorporated March 29, 1954, amended to include “(U.S.A.)” in 1970, and amended to its present form June 17 and November 10, 1975 , June 23, 1981, January 9, 1990, January 14, 1997 and February 10, 1998 and September 15, 2000.
ARTICLE XII Arbitration
Section 1: JURISDICTION
(a) Claims less than $10,000 between members: Any claim between members where the amount claimed is $10,000 or less shall be settled by binding arbitration in accordance with these rules.
(b) Claims greater than $10,000 between members: Any claim greater than $10,000 between members shall be settled by binding arbitration in accordance with these rules, if so agreed by all parties involved.
(c) All other claims between members and non-members may be settled by binding arbitration in accordance with these rules if so agreed by all parties involved and provided further that the Association agrees to hear and determine such dispute.
(d) Unless the parties agree otherwise, the place of arbitration shall be at the office of the Association and the laws of the State of New York shall apply. The award may be made a judgment of any court of competent jurisdiction.
Section 2: PROCEDURE
A member desiring to invoke the provisions of this Article (the “claimant”), shall within six months of the time that such claim arose, notify the Association, in writing, with a copy, by registered or certified mail, to the member or members against whom the claim is being asserted. This notification shall specify the nature and substance of the claim, the relief being requested and the factual and legal basis of the claim.
Upon receipt of such notification, the Association shall promptly forward a copy of the claim to all parties.
The member against whom the claim is being made (the “respondent”) shall, within thirty (30) days of receipt of the claimant’s notification, file with the Association, with a copy to the claimant, an answering statement and any related counterclaim.
The Association shall send a copy of the notification and the answering statement to the President. The President shall thereupon appoint three disinterested members of the arbitration committee to hear and determine the dispute; selecting one of the appointees as chair.
The chair of the panel shall notify all parties of the appointments. Any party objecting to any or all members of the panel shall notify the President, in writing, within twenty (20) days after receiving notice of the appointments, of such objection and the reasons therefore. The President shall then determine whether such objections are valid and make any changes in the composition of the panel that may be appropriate.
The panel shall conduct the arbitration in a prompt manner and render its written, signed award within thirty (30) days after the hearings are closed.
The award of at least a majority of the arbitrators shall be final and binding on the parties.
To the extent not inconsistent with the foregoing, the arbitration shall be conducted in accordance with the Rules of the Society of Maritime Arbitrators.
Section 3: ARBITRATION COMMITTEE
The President shall appoint an arbitration committee of not less than six members. The term of each appointee shall not be more than three years. The members of this committee shall be fairly evenly distributed among the dry, tanker and agency members.
Section 4: FEES
There shall be no fee for claims of $10,000 or less. Where the parties agree to submit claims in excess of $10,000, the claimant shall pay a fee to the Association of 5% of the amount claimed and the respondent shall pay the same for any counterclaim. The Association, in its sole discretion, shall decide how the fees will be allocated.
Article XIII Criteria for Certification of ASBA Ship Agent Members
Section 1. All Ship Agent Members (“Ship Agents”) must abide by the ASBA Code of Ethics.
Section 2. All Ship Agents must comply with the following standards of Financial Responsibility.
A) Certification by an external CPA that company financials are accurate as per generally accepted accounting practices.
a) External CPA Review for issuance of an “Agreed Upon Procedure Report” submitted to ASBA annually.
The following procedures, based on random sampling, must be attested to:
-Amounts due from/to principals in company’s general ledger are supported by detailed accounting and reporting for principals which agrees in total to the general ledger.
-Detailed accounting/reporting for principals includes a listing of cash receipts and disbursements (by invoice) for sample voyages with total amounts due to/from the principal for each selected voyage and in total at end of reporting period.
– Maintain separate files for principals to include supporting documentation
-All transactions for principals must be supported by invoices and/or receipts.
B) Certification by Ship Agent’s management that undisputed accounts are settled in accordance to agent’s agreement with principals and vendors.
C) Ship Agents must demonstrate adequate insurance coverage, submit proof annually and name ASBA as a notify party.
a) Automobile Coverage (owned and non-owned vehicles)
b) Workmen’s Compensation for USL&H as required.
c) Liability Coverage – minimum of 1 million dollars per event.
D) Company in good standing as certified annually by the Secretary of the State in which the Ship Agent is incorporated.
Section 3. Industry Experience
A) At least one year in the business.
Section 4. Each Ship Agent must ensure that its Employees are Trained and Professional
A) Ship Agents must provide on the job training or participate in member or ASBA provided training seminars.
B) Ship Agents must successfully complete the ASBA Ship Agent Exam.
Section 5. Ship Agents agree that the ASBA Ethics & Grievance Committee will be the governing body should issues regarding noncompliance with this article arise.
A) Ship Agents agree to abide by the ruling of the committee.
B) Ship Agents face possible suspension of and/or expulsion from membership for failure to comply with the requirements of this Article.